EXHIBIT 3.84
LIMITED LIABILITY COMPANY AGREEMENT
OF
NRG NEW JERSEY ENERGY SALES LLC
This LIMITED LIABILITY COMPANY AGREEMENT ("AGREEMENT") is entered into
on March 22, 2002.
RECITALS
A. The undersigned is the sole member of the Company.
B. The undersigned desires to enter into this Agreement, which is
intended to constitute a limited liability company agreement within the meaning
of the Act.
ARTICLE 1
DEFINITIONS
For purposes of this Agreement, capitalized terms used in this
Agreement have the meanings set forth below. Capitalized terms used but not
defined in this Agreement have the meanings set forth in the Act.
1.1 "ACT" means the Delaware Limited Liability Company Act
(presently 6 Delaware Code Section 18-101, et seq.), as amended from time to
time.
1.2 "AFFILIATE," with respect to any Person, means (a) any Person
directly or indirectly controlling, controlled by, or under common control with
such Person, (b) any Person owning or controlling 10% or more of the outstanding
voting securities of such other Person, (c) any officer, director, or partner of
such Person, and (d) if such other Person is an officer, director, or partner,
any company for which such Person acts in any such capacity.
1.3 "AGREEMENT" means this Limited Liability Company Agreement,
and all amendments, schedules, exhibits and modifications hereto.
1.4 "ASSIGNEE" means a transferee of an interest in the Company
who has not been admitted as a Substitute Member.
1.5 "CAPITAL ACCOUNT" means the account of a Member established
and maintained in accordance with the provisions of Section 4.1 hereof.
1.6 "CAPITAL CONTRIBUTION" means, with respect to a Member, the
total amount of cash and the agreed upon fair market value of property
contributed or agreed to be contributed by such Member to the capital of the
Company.
1.7 "CERTIFICATE OF FORMATION" means the Certificate of Formation
of the Company, as the same may be amended from time to time.
1.8 "CODE" means the Internal Revenue Code of 1986, as amended,
and any successor thereto. Any reference to specific Sections of the Code shall
be to the Section as it now exists and to any successor provision.
1.9 "COMPANY" means NRG New Jersey Energy Sales LLC.
1.10 "DISTRIBUTION" means the total amount of cash and/or the fair
market value of property distributed by the Company to a Member from time to
time with respect to his, her or its interest as a Member of the Company.
1.11 "MANAGEMENT BOARD" has the meaning set forth in Section 6.2.
1.12 "OFFICER" has the meaning set forth in Section 6.2.
1.13 "MEMBER" means a member of the Company as named herein and any
additional member or Substitute Member admitted pursuant to this Agreement. An
assignee who has not been admitted as a Substitute Member is not a Member for
any purpose.
1.14 "MEMBERSHIP INTEREST" means the interest of a Member in the
Company, including a Member's entire right, title and interest in the Company,
including the Member's financial interest and all rights to voting and
management and other rights of governance of the Company as set forth herein,
which Membership Interests are represented by Units.
1.15 "PERSON" means any natural person and any corporation,
partnership, trust, association, or other legal entity.
1.16 "SUBSTITUTE MEMBER" means a transferee who has been admitted
to the Company with all of the rights of membership in the Company pursuant to
the Agreement.
1.17 "UNIT" means a unit of Membership Interest that possesses
rights to Distributions from the Company and to share in the profits and losses
of the Company, as provided herein, and with the management rights provided
herein.
ARTICLE 2
FORMATION
2.1 FORMATION OF LIMITED LIABILITY COMPANY. The Company has been
organized as a Delaware limited liability company under the Act by the filing of
the Certificate of Formation in the form and as required by the Act. The rights
and liabilities of the Members are as provided in the Act, except as otherwise
expressly provided herein or in the Certificate of Formation.
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2.2 MEMBERS. NRG Power Marketing Inc. is the initial Member of the
Company, and agrees to the terms of this Agreement and to be fully bound hereby.
The address of the Member is as follows:
901 Marquette Avenue
Suite 2300
Minneapolis, Minnesota 55402
2.3 NAME. The name of the Company is NRG New Jersey Energy Sales
LLC. The Company may also conduct business under one or more assumed names.
2.4 OFFICES. The Company's registered office within the State of
Delaware shall be located at 1209 Orange Street, Wilmington, Delaware 19801, or
such other place as the Member may from time to time determine. The Company's
principal executive office shall be located at 901 Marquette Avenue, Suite 2300,
Minneapolis, Minnesota 55402, or such other place as the Member may from time to
time determine. The Company may maintain such other offices at such other places
as the Member deems advisable.
2.5 PURPOSES. The Company is formed for general business purposes
consistent with the Act. The Company shall have all of the powers necessary or
convenient to effect any purpose for which it is formed, including all powers
granted by the Act.
2.6 TERM. The period of existence of the Company shall be
perpetual, unless earlier dissolved in accordance with law.
2.7 REGISTERED AGENT. The Company's registered agent in Delaware
is The Corporation Trust Company. The registered agent may be changed from time
to time in accordance with the Act. If the registered agent resigns, the Company
shall promptly appoint a successor.
2.8 TITLE TO PROPERTY. All property owned by the Company, whether
real or personal, tangible or intangible, is deemed to be owned by the Company
as an entity, and no Member, individually, has any ownership interest in any
such property.
2.9 WAIVER OF PARTITION. Each Member hereby waives any and all
rights such Member may have to a partition of any Company property or
properties.
2.10 INTENTION FOR COMPANY. The Member has formed the Company as a
limited liability company under the Act. The Member specifically intends that
the Company not be a general or limited partnership or any other joint or
cooperative venture. No Member or Officer shall be construed to be a partner in
the Company or a partner or other joint venturer of or with any other Member,
Officer, or Person.
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ARTICLE 3
CAPITAL CONTRIBUTIONS
3.1 INITIAL CAPITAL CONTRIBUTIONS. As its initial Capital
Contribution to the Company, the Member agrees to make $1,000.00 as its Capital
Contribution for which it will receive 1,000 Units.
3.2 ADDITIONAL CAPITAL CONTRIBUTIONS; NONASSESSABILITY. No
additional Capital Contributions are presently contemplated or will be required.
No Member will be required to make any Capital Contribution in excess of the
amount stated in Section 3.1 unless agreed by all Members.
3.3 No RIGHT TO RETURN OF CONTRIBUTION. No Member has the right to
withdraw or to receive a return of their Capital Contributions, as reflected in
their respective Capital Accounts from time to time, except upon the dissolution
and liquidation of the Company pursuant to Article 13.
3.4 LOANS FROM MEMBERS TO COMPANY. Subject to any other
restrictions contained herein, the Company may borrow money from the Member at
such interest rate or rates and upon such other terms as are agreed upon by the
Company and the lending Member; provided that the interest rate on any such
loans may not exceed the rate that would apply to Company borrowing on similar
terms from recognized banks or financial institutions.
3.5 NO INTEREST ON CONTRIBUTIONS. No interest shall be paid to any
Member on Capital Contributions.
ARTICLE 4
ALLOCATIONS OF PROFITS
AND LOSSES; DISTRIBUTIONS
4.1 CAPITAL ACCOUNTS. The Company will maintain a separate Capital
Account for each Member. The Capital Account for each Member shall be increased
by such Member's Capital Contributions and decreased by Distributions made to
such Member. Each Member's Capital Account shall also be increased or decreased,
as the case may be, to account for allocations of profits and losses to such
Member. As of the date on which additional Capital Contributions are made by any
Member, or Distributions are made in liquidation of any Member's interest in the
Company, the Capital Account balances of the Members may be restated to reflect
the market values of the Company's properties as of such date and the manner in
which profits and losses would have been allocated had the Company disposed of
its properties on such date, all in accordance with Treasury Regulations
Sections 1.704-1(b)(2)(iv)(f) and (r), as in effect on the date hereof.
Subsequent adjustments to Capital Accounts shall be made so as to comply with
the requirements of Treasury Regulations Sections 1.704-1(b)(2)(iv) and
1.704-1(b)(4)(i), as in effect on the date hereof. For example, appreciation and
depreciation of assets reflected in the Capital Accounts of the Members by
reason of the adjustments described above shall be taken into account in making
later Capital Account adjustments for profits and losses.
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4.2 RESTATEMENT OF CAPITAL ACCOUNTS. If any additional Capital
Contributions are made to the Company, upon agreement of Members holding
seventy-five percent (75%) of all Units, the Capital Accounts of the Members may
be restated to reflect the Members' interests in Company assets. Any such
restatement shall reflect such increases or decreases in the Capital Accounts of
the Members as would reflect the manner in which income, gains, losses, etc.,
would be allocated if there were a taxable disposition of all Company property
for its fair market value on the date of such Capital Contributions.
4.3 ALLOCATIONS OF PROFIT AND LOSSES. Profits and losses of the
Company shall be allocated pro rata among the Members in proportion to their
Units.
4.4 SECTION 704(c) ALLOCATION. To the extent required by
Section 704(c) of the Code, items of income, gain, loss, or deduction with
respect to contributed properties shall be allocated among the Members in such
manner as takes into account any variations between the bases of such properties
to the Company upon contribution and the fair market values of such properties
at the time of contribution. Any allocations made solely to comply with this
Section 4.4 and Section 704(c) of the Code are not to be reflected in Capital
Account adjustments.
4.5 DISCRETIONARY DISTRIBUTIONS PRIOR TO LIQUIDATION. Additional
current Distributions may be made from time to time as the Members holding a
majority of the Units determine. Distributions pursuant to this Section 4.5 are
to be made among the Members in proportion to the number of Units held by each
of them. Except as provided in Section 4.8, all Distributions to Members prior
to the liquidation, winding up, and dissolution of the Company shall be in cash.
4.6 DISTRIBUTIONS UPON DISSOLUTION AND WINDING UP. At the time of
the dissolution and winding up of the Company, following the allocation of all
net income and net losses and the payment of all Company obligations, the
remaining assets shall be distributed to the Members in accordance with Section
12.3.
4.7 NO DISTRIBUTION BY REASON OF WITHDRAWAL. Neither withdrawal
from the Company, Transfer of any interest in the Company, nor demand for the
return of capital shall entitle any owner of an interest in the Company to
receive any Distribution from the Company.
4.8 DISTRIBUTIONS IN KIND. No Member has any right to demand or
receive a Distribution from the Company in any form other than cash, nor may any
Member be compelled to accept any distribution of property in kind except under
circumstances where all Members receive undivided interests in property or
substantially equivalent interests in property on the basis of their Capital
Accounts. If there is a Distribution of property in kind, such property shall be
assumed to have been sold at its fair market value at the time of the
Distribution, and the resulting gain or loss shall be allocated among the
Members according to their Capital Accounts, and their Capital Accounts shall be
adjusted accordingly.
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ARTICLE 5
RIGHTS AND DUTIES OF MEMBERS
5.1 MEMBER VOTING. Members shall possess voting rights in
proportion to their number of Units.
5.2 CONFLICTS OF INTEREST.
(a) OTHER BUSINESS VENTURES. Any Member may engage in or
possess an interest in other business ventures of every nature and
description, independently or with others, whether such ventures are
competitive with the Company or otherwise; and neither the Company nor
the Members shall have any right by virtue of this Agreement in or to
such independent ventures or to the income or profits derived
therefrom, and no Member shall have the obligation to bring any
business opportunity to the Company or to any other Member.
(b) CONTRACTS WITH MEMBERS AND AFFILIATES. A Member does
not violate a duty or obligation to the Company merely because the
Member's conduct furthers the Member's own interest. A Member (or an
Affiliate of a Member) may lend money to and transact other business
with the Company. If a Member (or an Affiliate of a Member) lends money
to or transacts business with the Company, the rights of such Member
(or an Affiliate of a Member) with respect to the loan or the
transacted business are the same as those of a Person who is not a
Member, subject to other applicable law. No transaction with the
Company shall be voidable solely because a Member has a direct or
indirect interest in the transaction if either (i) the transaction is
fair to the Company or (ii) the disinterested Members, knowing the
material facts of the transaction and the Member's interest, authorize,
approve or ratify the transaction.
ARTICLE 6
MANAGEMENT
6.1 MANAGEMENT. Except as otherwise specified herein, the
management of the Company is reserved to the Member. All decisions of the
Company shall be by the agreement of Members holding a majority of the Units
held by Members. Notwithstanding the foregoing, the Management Board and/or
Officers of the Company may make decisions related to the management of the
Company except to the extent the Members may otherwise limit such authority.
6.2 MANAGEMENT BOARD. The Company may have a "MANAGEMENT BOARD" of
such number of members as Members holding a majority of the Units held by
Members shall determine from time to time, whose authority shall be subject to
the provisions of Section 6.1. Members holding a majority of the Units held by
Members may remove a member of the Management Board from that position. The
initial members of the Management Board shall be set forth herein at Exhibit A.
The "OFFICERS" of the Company shall consist of the members of the Management
Board and the other Officers elected or appointed pursuant to this Article 6.
All other Officers named in this Agreement or elected or appointed pursuant to
this Article 6 shall be
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responsible to, and subject to the authority and direction of, the Management
Board in connection with matters over which the Management Board has authority.
Except as otherwise provided herein, whenever this Agreement contemplates action
by the Management Board, the Management Board may take or cause to be taken such
action in connection with the Company's business by the vote or agreement of a
majority of the members of the Management Board.
6.3 RIGHT OF PUBLIC TO RELY ON AUTHORITY OF MEMBERS; SIGNATORY
AUTHORITY. No person shall be required to determine the authority of the Members
or of a Member to make any undertaking on behalf of the Company, or to see to
the application or distribution of revenues or proceeds paid to the Members or
to a Member.
6.4 OFFICERS.
(a) The Officers of the Company, as such, shall have
limited authority, and shall be subject to the provisions and
limitations of this Article 6.
(b) The Management Board may elect a Chairperson of the
Board who, if elected, shall preside at all meetings of the Members and
of the Management Board and shall perform such other duties as may be
prescribed by the Management Board from time to time.
(c) The Company may have a Chief Executive Officer, who
shall have general active management of the business of the Company,
and in the absence of the Chairperson of the Board or if the office of
Chairperson of the Board is vacant, shall preside at meetings of the
members and Management Board, shall see that all orders and resolutions
of the Management Board are carried into effect, shall have authority
to sign and deliver in the name of the Company any deeds, mortgages,
bonds, contracts, or other instruments pertaining to the business of
the Company, except in cases in which the authority to sign and deliver
is required by law to be exercised by another person or is expressly
delegated by this Agreement, or the Management Board to some other
Officer or agent of the Company, may maintain records of and certify
proceedings of the Management Board and Members, and shall perform such
other duties as may from time to time be prescribed by the Management
Board.
(d) The Company shall have a President, who shall be the
chief operating officer of the Company, shall have authority to
exercise the power of the Chief Executive Officer in his absence, and
in the absence of the Chairperson of the Board and the Chief Executive
Officer, or if both such offices are vacant, shall preside at meetings
of the Members and Management Board. The Company may also have one or
more Vice Presidents, who shall have authority to exercise the power of
the President in his absence.
(e) The Company shall have a Treasurer, who, unless
provided otherwise by the Management Board, shall keep accurate
financial records for the Company, shall deposit all moneys, drafts,
and checks in the name of and to the credit of the Company in such
banks and depositories as the members or the Management Board shall
designate from time to time, shall endorse for deposit all notes,
checks, and drafts received by the
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Company as ordered by the members or the Management Board, making
proper vouchers therefore, shall disburse Company funds and issue
checks and drafts in the name of the Company as ordered by the members
or the Management Board, shall render to the President and the
Management Board, whenever requested, an account of all such Officer's
transactions as Chief Financial Officer and of the financial condition
of the Company, and shall perform such other duties as the members or
the Management Board or the President may prescribe from time to time.
(f) The Company shall have a Secretary, who shall have
primary responsibility to maintain records of actions of, and whenever
necessary, certify all proceedings of the Members. The Secretary shall
keep the required records of the Company, when so directed by the
person or persons authorized to call such meetings, shall give or cause
to be given notice of meetings of the Members, and shall perform such
other duties and have such other powers as the Members or the President
may prescribe from time to time.
(g) A Officer, as such, shall not be obligated to devote
his or her full time to the conduct of the Company affairs, but shall
devote only as much time as he or she deems necessary for the proper
conduct thereof, and provided further, that nothing in this Agreement
shall be deemed to restrict in any way the freedom of a Officer to
conduct any other businesses or activities whatsoever without any
accountability to the Company.
(h) The Company may have additional Officers as provided
in Section 6.6.
6.5 INITIAL OFFICERS. The initial Officers shall be set forth
herein at Exhibit A.
6.6 ELECTION AND REMOVAL OF OFFICERS. Subject to the other
provisions of this Article 6, the members or the Management Board may elect or
appoint other Officers or agents of the Company, with such titles, duties, and
authority as they shall designate. Subject to the other provisions of this
Article 6, and to any other limitations that the Management Board may impose,
the President may delegate authority and appoint other Officers and agents of
the Company, with such titles, duties, and authority as the President shall
designate. The President, at any time, may remove or terminate the authority of
any Officer or agent that was appointed by the President. The members or the
Management Board may at any time remove or terminate the authority of any
Officer or agent, whether elected or appointed by the members or the Management
Board or the President.
ARTICLE 7
LIABILITY AND INDEMNIFICATION
7.1 LIABILITY OF MEMBERS. No Member shall be liable as such for
the liabilities of the Company. The failure of the Company to observe any
formalities or requirements relating to the exercise of its powers or management
of its business or affairs under this Agreement or the Act shall not be grounds
for imposing personal liability on the Members or the Officers for liabilities
of the Company.
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7.2 LIABILITY OF OFFICER AND EMPLOYEES. No Officer or employee
shall be liable to the Company for any liability suffered by the Company on
account of any action or inaction taken by him as a Officer or employee, if such
Person acted (a) in good faith, (b) with the care of a corporate officer of like
position, and (c) in a manner he reasonably believed to be in the best interest
of the Company.
7.3 INDEMNIFICATION.
(a) The Company shall indemnify any current or former
Officer of the Company to the full extent permitted by law against
expenses, judgments and other losses arising out of his or her status
as an officer or member of the Management Board, provided that the
Officer has met the appropriate standard of conduct as set forth in
Section 7.2, in the interpretation of a majority in interest of the
members or the Management Board (excluding the Officer for whom such
indemnification is proposed, if such Officer serves on the Management
Board).
(b) The Company may indemnify any current or former
employee or agent of the Company, at the discretion of the members or
the Management Board, to the full extent permitted by law against
expenses, judgments and other losses arising out of their status as an
employee, provided that the employee has met the appropriate standard
of conduct as set forth in Section 7.2, in the interpretation of the
members or the Management Board.
7.4 EXPENSES.
(a) The Company shall reimburse an Officer for all losses
and expenses, including legal fees, in connection with any suit or
action referred to in Section 7.3(a) above.
(b) In the discretion of the Officer, the Company may
advance a Officer or employee funds to defend a suit or otherwise,
provided that such Person must agree to repay such amounts if it is
determined that he is not entitled to reimbursement of the funds.
7.5 NON-EXCLUSIVITY. The indemnification and advancement of
expenses shall not be exclusive of any other right available to a Officer or
employee.
ARTICLE 8
BOOKS AND RECORDS; TAX MATTERS
8.1 TAX CHARACTERIZATION. The Members intend that the Company be
treated as a "partnership" for tax purposes during all periods when there is
more than one Person that owns an interest in the Company for federal income tax
purposes, and as a disregarded entity for tax purposes during periods for which
there is but one Person that owns an interest in the Company for federal income
tax purposes.
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8.2 ACCOUNTING METHOD AND FISCAL YEAR. The Company shall keep its
accounting records and shall report its income for income tax purposes on the
method of accounting that was used by the Company. The fiscal year of the
Company shall be the calendar year.
8.3 BOOKS AND RECORDS. The Company's books and accounting records
and all other papers, records, and documents relating to the Company's affairs
shall be kept at the Company's principal executive office or such other place as
the Members may agree. Each Member shall have the right, subject to applicable
law and reasonable standards established by the Officer, to obtain from the
Company from time to time upon reasonable demand for any purpose reasonably
related to the Member's interest as a Member of the Company:
(a) true and full information regarding the status of the
business and financial condition of the Company;
(b) promptly after becoming available, a copy of the
Company's federal, state, and local income tax returns for each year;
(c) a current list of the name and last known business,
residence or mailing address of each Member and Officer of the Company;
(d) a copy of any written limited liability company
agreement and Certificate of Formation and all amendments thereto,
together with executed copies of any written powers of attorney
pursuant to which the limited liability company agreement and any
certificate and all amendments thereto have been executed; and
(e) true and full information regarding the amount of
cash and description and statement of the agreed value of any other
property or services contributed by each Member and which each Member
has agreed to contribute in the future, and the date on which each
became a Member
8.4 ANNUAL FINANCIAL STATEMENTS. The Management Board shall cause
to be prepared and delivered to each of the Members within 120 days after the
close of each fiscal year, annual financial statements for the Company,
including statements of assets and liabilities, income statements, and such
other statements as are commonly included in financial statements, or as may be
requested by the Members. Such financial statements need not be audited. Costs
of compiling the Company's annual financial statements will be paid by the
Company. If a majority in interest of the Members deems it advisable to have the
Company's financial statements audited or reviewed, the Management Board may
engage an independent certified public accountant to do so, and the fees
therefor will be paid by the Company.
8.5 BANK ACCOUNTS. The members or the Management Board shall
select a bank account or accounts for the funds of the Company, and all funds of
every kind and nature received by the Company shall be deposited in such account
or accounts. The members or the Management Board shall designate from time to
time the Persons authorized to withdraw funds from such accounts. The funds of
the Company will not be commingled with funds of any other Person.
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8.6 TAX RETURNS. As soon as possible following the close of each
year of the Company for which the filing of a partnership tax return is
required, the partnership income tax return for the Company shall be prepared by
such accountant or firm as may be selected by the members or the Management
Board. In addition, within 75 days after the end of each fiscal year, the
Company will cause to be delivered to each Person who was a Member at any time
during such fiscal year a Schedule K-l and such other information, if any, with
respect to the Company as may be necessary for the preparation of such Member's
federal or state income tax (or information) returns, including a statement
showing each Member's share of income, gain, loss, and credits for such fiscal
year for federal or state income tax purposes.
8.7 TAX ELECTIONS. In the sole discretion of the members or the
Management Board, the Company may make or not make any and all tax elections
deemed appropriate, including, in the event of a transfer of all or part of any
Member's interest in the Company, the election under Section 754 of the Code to
adjust the bases of the assets of the Company.
8.8 TAX MATTERS PARTNER. During periods for which the Company must
have a "tax matters partner" within the meaning of Section 6231(a)(7) of the
Code, NRG Power Marketing Inc. shall act as the tax matters partner of the
Company.
ARTICLE 9
TRANSFERS OF MEMBERSHIP INTERESTS
9.1 LIMITATION ON SALE OR EXCHANGE. Except as otherwise provided
in this Article 9, no Member may sell, assign, or otherwise transfer all or any
portion of his, her or its interest in the Company except as agreed by all other
Members.
9.2 REQUIREMENTS FOR ASSIGNMENT. Subject to restrictions on
transferability contained elsewhere in this Agreement or imposed by federal or
state law, a Member may assign an interest in the Company only (a) by a written
assignment that (i) is not in contravention of any of the provisions of this
Agreement; (ii) has been duly executed and acknowledged by the assignor and
assignee, subject to the reasonable approval of the members or the Management
Board; and (iii) is to an assignee who represents that he satisfies specific
suitability standards applicable to the assigning Member as may from time to
time be established by a majority in interest of the Members; and (b) if
required by the Management Board, legal counsel for the Company has rendered its
opinion, in form and substance satisfactory to the Management Board and at the
expense of the prospective assignee or assignor, that such assignment would not
cause the termination of the Company for federal income tax purposes (unless
termination is consented to by the Management Board or the transfer is otherwise
permitted by Section 10.1) or the taxation of the Company as a corporation.
9.3 CONTINUATION OF ASSIGNOR'S STATUS. Anything herein to the
contrary notwithstanding, the Company, its Officers, and the Members are
entitled to treat an assignor of an interest in the Company as the absolute
owner thereof in all respects, and they will incur no liability for
distributions of cash made in good faith to him, her or it until such time as a
written assignment that conforms to all requirements of this Article 10 has been
received by and recorded on the books and records of the Company.
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9.4 ASSIGNEE'S RIGHTS. An assignee of any Member's interest will
be entitled to receive Distributions of cash or other property from the Company
and to receive allocations of the gains, profits, and losses of the Company
attributable to such interest after the effective date of the assignment. The
"effective date" of an assignment shall be the later of (a) the date set forth
on the written instrument of assignment and (b) the date upon which the
requirements of this Article 9 have been satisfied. An Assignee who has not been
admitted as a Substitute Member pursuant to Section 9.5 will have no additional
rights except as required by law.
9.5 REQUIREMENTS FOR ADMISSION AS A SUBSTITUTE OR ADDITIONAL
MEMBER. An assignee of an interest in the Company, if not already a Member, may
become a Substitute Member only with the consent of Members holding a majority
of all Units held by nontransferring Members, which consent may be granted or
withheld all in each such Member's sole discretion. No assignee of any Member's
interest who is not already a Member may become a Substitute Member with respect
to such interest without such consent.
9.6 DOCUMENTS AND EXPENSES. As a condition to admission as a
Substitute Member, an assignee of all or a part of any interest in the Company
shall execute and acknowledge such instruments, in form and substance
satisfactory to the Company, as the Company deems necessary or advisable to
effectuate such admission and to confirm the agreement of the person being
admitted as such Substitute Member to be bound by all of the terms and
provisions of this Agreement. Such assignee shall pay all reasonable expenses in
connection with such admission as a Substitute Member, including, but not
limited to, legal fees and costs of preparing and filing any amendment to the
Certificate of Formation of the Company if necessary or desirable in connection
therewith.
9.7 TRANSFERS NOT IN COMPLIANCE WITH THIS ARTICLE ARE VOID. Any
attempted transfer of an interest in the Company, or any part thereof, not in
compliance with this Article 9 is null and void ab initio.
9.8 ACQUIT COMPANY. Until such time as a written assignment that
conforms to all requirements of this Article 9 has been received by and recorded
on the books of the Company, any payment by the Company to an assigning Member
or his, her or its executors, administrators, or representatives shall acquit
the Company of liability to the extent of such payments from any other Person
who may have an interest in such payment by reason of an assignment by the
Member, such Member's death, or otherwise.
9.9 OBLIGATIONS OF SUBSTITUTE MEMBERS OR ASSIGNEES. A Person who
shall, as provided in this Article, be admitted as a Member of the Company, or
shall become an assignee of an interest in the Company or other rights or powers
of a Member to the extent assigned, shall become bound by this Agreement:
(a) If such Person (or a representative authorized by
such Person orally, in writing or by other action such as payment for
an interest in the Company) executes the Agreement or any other writing
evidencing the intent of such Person to become a Member or Assignee; or
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(b) Without such execution, if such Person (or a
representative authorized by such Person orally, in writing or by other
action such as payment for an interest in the Company) complies with
the conditions for becoming a Member or Assignee as set forth in this
Agreement or any other writing and requests (orally, in writing or by
other action such as payment for a Company interest) that the records
of the Company reflect such admission or assignment; and
Such obligation shall not be unenforceable by reason of its not having been
signed by a Person being admitted as a Member or becoming an assignee as
provided in this Article, or by reason of its having been signed by a
representative as provided by the Act.
ARTICLE 10
ADDITIONAL MEMBERS
Additional Members may be admitted to the Company upon such terms and
conditions, and for such Capital Contributions as shall be approved by all
Members. If there remain no Members because of the occurrence of an event
described in Section 12.1(c) that terminated the membership of the last
remaining Member, any or all Persons that (a) acquired all or any portion of
such Member's interest in the Company and (b) request in writing to be admitted
as a Member, shall be admitted as additional Members of the Company as of a
common date no later than 90 days after the occurrence of such Dissolution
Event.
ARTICLE 11
RESIGNATION; WITHDRAWAL
A Member may not resign from, withdraw from, or assign an interest in
the Company, except as specifically permitted by this Agreement.
ARTICLE 12
DISSOLUTION; CONTINUATION
12.1 DISSOLUTION EVENTS. The Company shall continue until the
occurrence of any of the following events (each a "DISSOLUTION EVENT"):
(a) The expiration of the Company's period of existence,
as set forth in the Certificate of Formation;
(b) The written consent of all of the Members to dissolve
and terminate the Company;
(c) The death, retirement, resignation, expulsion,
bankruptcy, or dissolution of a Member, or the occurrence of any other
event which terminates the continued membership of a Member; or
(d) The decree of a court of competent jurisdiction that
dissolution and liquidation is required.
13
12.2 CONTINUATION AFTER DISSOLUTION. Upon the occurrence of a
Dissolution Event defined in Section 12.1(c), the Company automatically shall be
continued (a) if there are remaining Members, unless the remaining Members of
the Company elect to dissolve pursuant to Section 12.1(b), or (b) if there are
no remaining Members of the Company, if one or more additional Members are
admitted pursuant to Article 9 within 90 days after such Dissolution Event.
12.3 DISSOLUTION PROCEDURE. Except as otherwise provided by the Act
and unless the Company is continued pursuant to Section 12.2, upon the
occurrence of a Dissolution Event, no further business shall be done in the name
of or on behalf of the Company except insofar as may be necessary to wind up the
business of the Company and distribute its assets to the Members or their
successors in interest, and the Company shall execute and file a certificate of
cancellation as required by the Act. Upon dissolution and termination of the
Company, except as otherwise provided in any valid business continuation
agreement and by applicable law, the Company's assets shall be applied in the
following order:
(a) To creditors, including Members or the Officer who
are creditors, to the extent otherwise permitted by law, in
satisfaction of liabilities of the Company (whether by payment or the
making of reasonable provision for payment thereof) other than
liabilities for which reasonable provision for payment has been made;
(b) Next, to the setting up of any reserves deemed
reasonably necessary by the Officer for (i) any contingent, conditional
or unmatured claims or obligations of the Company known to the Company;
and (ii) all claims and obligations which are known to the Company but
for which the identity of the claimant is unknown; and
(c) Next, to the Members first in accordance with their
respective Capital Account balances, and second respecting their
interests in the Company, in the proportions in which Members share in
Distributions pursuant to Section 4.5 of this Agreement.
For purpose of determining the rights of Members to Distributions in
dissolution, in the event of a distribution of property in kind, such property
shall be assumed to have been sold at its fair market value, as determined by
the Officer, with any gain or loss allocated to the Members in accordance with
Article 4. If a Member is indebted to the Company, the Company shall, if
possible, offset such indebtedness to satisfy its obligation to make a
Distribution in dissolution to said indebted Member rather than distribute a
portion of said indebtedness to the other Members.
ARTICLE 13
AMENDMENTS
No change, modification or amendment of this Agreement shall be valid
or binding unless such change, modification or amendment is contained in a
writing signed by all Members.
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ARTICLE 14
PROVISIONS APPLICABLE WHEN
THERE IS A SINGLE MEMBER
For all periods during which there is a single Member of the Company,
notwithstanding any contrary provision of this Agreement, such Member's actions,
for all purposes, shall be duly authorized actions by and on behalf of the
Company.
ARTICLE 15
MISCELLANEOUS
15.1 GOVERNING LAW. Notwithstanding the fact that the Company will
conduct business in states other than Delaware, and notwithstanding the fact
that the Members are residents of states other than Delaware, this Agreement and
the rights of the parties hereunder will be governed by, interpreted, and
enforced in accordance with the laws of the State of Delaware.
15.2 CERTIFICATE OF FORMATION. The Certificate of Formation is
incorporated by reference and hereby made a part of this Agreement. In the event
of any conflict between the Certificate of Formation and this Agreement, the
provisions of this Agreement shall govern to the extent not contrary to law.
15.3 BINDING EFFECT. This Agreement will be binding upon and inure
to the benefit of the Members, and their respective heirs, executors,
administrators, personal representatives, successors and assigns.
15.4 SEVERABILITY. If any provision of this Agreement is held to be
illegal, invalid or unenforceable under the present or future laws effective
during the term of this Agreement, such provision will be fully severable, and
this Agreement will be construed and enforced as if such illegal, invalid, or
unenforceable provision had never comprised a part of this Agreement, and the
remaining provisions of this Agreement will remain in full force and effect and
will not be affected by the illegal, invalid or unenforceable provision or by
its severance from this Agreement. Furthermore, in lieu of such illegal, invalid
or unenforceable provision, there will be added automatically as a part of this
Agreement a provision as similar in terms to such illegal, invalid or
unenforceable provision as may be possible and be legal, valid and enforceable.
15.5 COUNTERPARTS. This Agreement may be executed in several
counterparts, each of which will be deemed an original, but all of which will
constitute one and the same instrument. In making proof hereof it will be
necessary to produce only one copy hereof signed by the party to be charged.
15.6 ADDITIONAL DOCUMENTS AND ACTS. Each Member agrees to execute
and deliver such additional documents and instruments and to perform such
additional acts as may be necessary or appropriate to effectuate, carry out and
perform all of the terms, provisions and conditions of this Agreement and the
transactions contemplated hereby.
15
15.7 No THIRD PARTY BENEFICIARY. This Agreement is made solely and
specifically among and for the benefit of the parties hereto, and their
respective successors and assigns, and no other Person will have any rights,
interest or claim hereunder or be entitled to any benefits under or on account
of this Agreement, whether as a third party beneficiary or otherwise.
15.8 NOTICES. Any notice to be given or to be served by a Member
upon the Company in connection with this Agreement must be in writing and will
be deemed to have been given when delivered personally or mailed to the Company
at its registered office or its principal executive office or to the Company's
President. Notice to a Member will be deemed to have been given when (a)
delivered personally to the Member or (b) deposited in the United States mail,
postage prepaid and addressed to a Member at the address specified in Section
2.2 hereof. At any time, by giving 5 days' prior written notice to the Company,
a Member may designate another address in substitution of the foregoing address
as the address to which notice is to be given.
15.9 HEADINGS AND TITLES. Article and section headings and titles
are for descriptive purposes and convenience of reference only and shall not
control, alter or be used to interpret the meaning of this Agreement as set
forth in the text.
15.10 ENTIRE AGREEMENT. This Agreement is the final integration of
the agreement of the parties with respect to the matters covered by it and
supersedes any prior understanding or agreement, oral or written, with respect
thereto.
15.11 GENDER, ETC. Except where the context requires otherwise, the
use of terminology of any of the masculine, feminine or neuter genders shall
include all such genders, and the use of the singular number shall include the
plural and vice versa.
IN WITNESS WHEREOF, the Member has executed this Agreement as of the
date first above written.
NRG POWER MARKETING INC.
/s/ Craig A. Mataczynski
-----------------------------
By: Craig A. Mataczynski
Its: President
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EXHIBIT A
MEMBER: NRG Power Marketing Inc.
CAPITAL CONTRIBUTION NUMBER OF UNITS % OWNERSHIP PARENT COMPANY
-------------------- --------------- ----------- --------------
$1,000.00 1,000 100% NRG Power Marketing Inc.
INITIAL MANAGEMENT BOARD:
None
INITIAL OFFICERS:
President Craig A. Mataczynski
Vice President Christopher M. Cairo
Treasurer Brian B. Bird
Secretary Guy C. Smith
Assistant Secretary David Adams
Assistant Secretary Kathryn J. Osteraas